[1.0] Present Special Civil Application under Article 226 of the Constitution of India has been preferred by the petitioner herein - original defendant No.5 to stay further proceedings of Lavad Case No.81 of 2010 instituted by respondent No.1 in the Court of learned Board of Nominees, Mehsana till the application filed by the petitioner before the Registrar, Cooperative Societies, State of Gujarat under Section 98(2) of the Gujarat Cooperative Societies Act, 1961 to transfer the aforesaid Lavad Case to another learned Board of Nominees, is decided by the Registrar, Cooperative Societies and to direct respondent No.3, Registrar, Cooperative Societies, State of Gujarat to decide the application filed by the petitioner, which is at Annexure-A to the petition, at the earliest.
[1.2] Miscellaneous Civil Application No.625 of 2012 in Special Civil Application No.6640 of 2010 has been preferred by the applicants herein - original petitioner - original plaintiff to direct the learned Board of Nominees to dispose of the Lavad Case No.81 of 2010 forthwith but not later than 30.03.2012.
[2.0] At the outset it is required to be noted that respondent No.1 herein of Special Civil Application No.2793 of 2012 has instituted Lavad Suit No.81 of 2010 against the petitioner herein and others which was being heard by the learned Board of Nominees, Mehsana (Incharge). It appears that the learned Board of Nominees dismissed the interim application submitted by the original plaintiff which came to be confirmed by the Revisional Authority - Tribunal against which respondent No.1 herein - original plaintiff preferred Special Civil Application No.6640 of 2010 and this Court disposed of the aforesaid Special Civil Application No.6640 of 2010 by order dated 13.09.2011 with the consent of learned advocates appearing for respective parties and directed the learned Board of Nominees, Mehsana to finally decide and dispose of the said Lavad Case at the earliest but in any case not later than 31.01.2012 and till then the ad-interim relief which was granted by this Court in the aforesaid Special Civil Application was directed to be continued till final disposal of the aforesaid lavad suit.
[2.1] It appears that thereafter the lavad suit came to be proceeded by the learned Board of Nominees, Mehsana (Incharge) and the learned Board of Nominees was to dispose of the said suit at the earliest and within the stipulated time. However, it appears that the petitioner had raised some grievance against the learned Board of Nominees and therefore, he did not cooperate and the petitioner submitted the application before the Registrar, Cooperative Societies, State of Gujarat, Gandhinagar on 24.02.2012 purported to be under Section 98(2) of the Gujarat Cooperative Societies Act, 1961 requesting to transfer the aforesaid lavad suit from the Court of learned Board of Nominees, Mehsana (Incharge) to any other learned Board of Nominees Court. That as the time to dispose of the aforesaid lavad suit which was provided by this Court had already expired and therefore, the learned Board of Nominees decided to proceed further with the suit which was objected by the petitioner on the ground that till his application for transfer is not decided, the learned Board of Nominees, Mehsana (Incharge) shall stay the further proceedings of the lavad suit which is not accepted by the learned Board of Nominees in view of the direction issued by this Court to decide and dispose of the suit within stipulated time. Hence, the petitioner herein - original defendant No.5 has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. Simultaneously as the time limit prescribed by this Court has expired, the original petitioner preferred the Miscellaneous Civil Application No.625 of 2012 for extension of time to decide and dispose of the lavad suit on or before 31.03.2012.
[2.2] Shri D.C. Dave, learned Senior Advocate appearing on behalf of original defendant No.5 has vehemently submitted that the petitioner has raised a valid grievance against the learned Board of Nominees and therefore, he has submitted the application before the Registrar to transfer the lavad suit to another learned Board of Nominees in exercise of powers under Section 98(2) of the Gujarat Cooperative Societies Act, 1961 and therefore, unless and until the said application is decided by the Registrar, the learned Board of Nominees ought to have stayed the further proceedings of the suit. It is submitted that if the further proceedings of the lavad suit are not stayed till the Registrar takes any decision on his application at Annexure-A to the petition, his application would become infructuous. Therefore, it is requested to direct the Registrar to decide and dispose of the application submitted by the petitioner, which is at Annexure-A to the petition, to transfer the lavad suit from the Court of learned Board of Nominees, Mehsana (Incharge) to any other learned Board of Nominees and till then to stay further proceedings of the lavad suit.
[3.0] Shri S.N. Shelat, learned Senior Advocate appearing with Ms. Dhara Shah, learned advocate appearing on behalf of original petitioner - original plaintiff has submitted that as such the application submitted by the petitioner to transfer the lavad suit from the learned Board of Nominees, Mehsana (Incharge) to another Court is malafide and with a view to delay the hearing of the suit and is vexatious and without any substance. It is submitted that merely because the learned Board of Nominees has refused to grant adjournment considering the direction issued by this Court in Special Civil Application No.6640 of 2010 and when he was proceeding further with the suit and the petitioner - original defendant No.5 finds that it is not convenient for him to proceed further with the suit before the learned Board of Nominees, the application has been submitted to transfer the case from him. Therefore, it is submitted that as such there is no substance in the application submitted by the petitioner to transfer the case from the Court of learned Board of Nominees, Mehsana (Incharge) to another Court, otherwise it will demoralize the concerned Judge. It is submitted by him that still it is for the Registrar to take appropriate decision on the said application and therefore, he cannot have any objection if a suitable direction is issued directing the Registrar to take appropriate decision in accordance with law and on merits on the application submitted by the petitioner, which is at Annexure-A to the petition, within stipulated time and after giving an opportunity to the original plaintiff also. It is submitted that as such out of number of defendants, only one defendant No.5 has made the grievance against the learned Board of Nominees. However, he has opposed the prayer of the petitioner to stay the further proceedings of the lavad suit by the learned Board of Nominees, Mehsana (Incharge) till any appropriate decision is taken by the Registrar on the application submitted by the petitioner, which is at Annexure-A to the petition. It is submitted that on one hand there is already a direction issued by this Court directing the learned Board of Nominees to decide and dispose of the lavad suit within the stipulated time which has been issued with the consent of learned advocates appearing on behalf of the respective parties and on the other hand if further proceedings are stayed, in that case, such a direction to stay would be in direct conflict with the direction issued by this Court issued while disposing of the Special Civil Application No.6640 of 2010. It is submitted that even otherwise there is no justification to stay the further proceedings of the lavad suit.
[4.0] Heard the learned advocates appearing for respective parties at length. At the outset it is required to be noted that as such while disposing of the Special Civil Application No.6640 of 2010, this Court has directed the learned Board of Nominees to finally decide and dispose of the Lavad Case No.81 of 2010 at the earliest but in any case not later than 31.01.2012. As such the said period has already expired and therefore, the original petitioner has preferred Miscellaneous Civil Application No.625 of 2012 for extension of time and to direct the learned Board of Nominees to decide and dispose of the aforesaid Lavad Case No.81 of 2010 on or before 31.03.2012. It is required to be noted that as such the aforesaid direction has been issued by this Court with the consent of learned advocates appearing on behalf of the respective parties. In the meantime the petitioner herein - original defendant No.5 who was not even a party to the original suit has submitted the application Annexure-A to the Registrar, Cooperative Societies making some allegations against the learned Board of Nominees and requesting to transfer the aforesaid lavad suit to another Court in exercise of powers under section 98(2) of the Gujarat Cooperative Societies Act, 1961. It is required to be noted that as such the said application has been submitted even after the period fixed by this Court to dispose of the suit as expired. A request was made to the learned Board of Nominees to stay further proceedings of the suit till the application Annexure-A is decided and disposed of by the Registrar, which is rightly rejected by the learned Board of Nominees considering the direction issued by this Court in Special Civil Application No.6640 of 2010 directing him to decide and dispose of the suit within stipulated time. This Court was ready to consider the grievance of the petitioner on merits with respect to the allegations made against the learned Board of Nominees and the request of the petitioner to transfer the Lavad Suit. However, the learned counsel appearing on behalf of the petitioner has requested not to consider the same on merits as the same is to be first considered by the Registrar, Cooperative Societies. However, his only insistence is to stay the further proceedings of the suit which in light of the direction issued by this Court in Special Civil Application No.6640 of 2010 cannot be granted. On one hand this Court has already directed the learned Board of Nominees to decide and dispose of the suit within stipulated time and when the said period has already expired, any order passed by this Court to stay further proceedings would be contrary to and/or in conflict with the direction already issued by this Court in Special Civil Application No.6640 of 2010. Under the circumstances, the prayer of the petitioner to stay further proceedings of the lavad suit cannot be granted. However, as the application is pending before the Registrar, a suitable direction can be issued to the Registrar directing him to take appropriate decision on the application submitted by the petitioner, which is at Annexure-A to the petition, at the earliest and after giving an opportunity to the original plaintiff.
[5.0] In view of the above, present Special Civil Application No.2793 of 2012 is disposed of by directing the Registrar, Cooperative Societies, State of Gujarat to take appropriate decision on the application submitted by the petitioner, which is at Annexure-A to the petition, in accordance with law and on merits and after giving opportunity to the original plaintiff at the earliest but not later than 30.04.2012. The petitioner either in person or through his advocate and the original plaintiff in person or through his advocate to remain present before the Registrar, Cooperative Societies, State of Gujarat at the first instance on 19.04.2012 and exchange the pleadings if any and thereafter Registrar, Cooperative Societies, State of Gujarat to take appropriate decision on the said application after considering the submissions made by the respective parties i.e. petitioner herein
- original defendant No.5 and original plaintiff on or before 30.04.2012 as stated herein above. With this, present Special Civil Application No.2793 of 2012 is disposed of. Direct service is permitted.
[5.1] So far as the Miscellaneous Civil Application No.625 of 2012 is concerned, it is allowed and time to decide and dispose of the Lavad Suit No.81 of 2010 by the learned Board of Nominees, Mehsana (Incharge) is hereby extended upto 30.05.2012. All concerned are directed to cooperate the learned Board of Nominees to decide and dispose of the aforesaid suit at the earliest and within the stipulated time stated herein above.
(M.R.
Shah, J.) menon Top